TaxTMI 
TaxTMI 
TaxTMI 
2019 (4) TMI 1621
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....stances of the case and in law, the tribunal is correct in deciding the issue in favour of the assessee relating to the addition of income as per rule 10A on account of "Advertisement Revenue" and "Distribution revenue" ignoring the fact that the assessee has a PE in India? b. Whether on the facts and circumstances of the case and in law, the ITAT is correct in not treating M/s Multi Screen Media Pvt. Ltd. (MSM India as Permanent establishment of the assessee in terms of Article 5 of Double Taxation Avoidance Agreement between India an Singapore? c. Whether on the facts and circumstances of the case and in law, the ITAT erred is not appreciating that the assessing officer has correctly assessed as distribution receipt as 'Royalty Income....
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....0 percent as can be seen from the order of CIT (A). This was not disputed by the revenue in its Appeal before the ITAT. (2) The only contention advanced and which found favour with the Tribunal was that the advertisement revenue received by the assessee was also income liable to tax in India. The CIT (A) relied upon Circular No.23 of 1969. That Circular read with Article 7(1) would result in holding that advertisement revenue received by the appellant are not taxable in India as long as the treaty and Circular stands. 14. In the light of the above Appeal filed by the Appellant herein is allowed and the order of the ITAT is set aside. Merely because tax on income was paid for some assessment years would not estop the assessee from conten....
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....#39;Royalty Income'?. The Tribunal had dealt with this issue, by making an extensive reference to the order of CIT (Appeals). Relevant portion of this judgment of the Tribunal dated 28th August, 2015 reads as under : "7. Regarding distribution revenue also, the Ld. CIT (A), though discussed the issue in detail that it is not "royalty", decided the issue in favour of the assessee, following the past history of the assessee from assessment year 1999-2000 to 2004-05, wherein this issue was decided in favour of the assessee. The relevant observation and finding of the CIT (A) is as under: 11. After considering the rival contention and above facts, we find that, so far as the issue relating to addition on account of 'advertisement ....
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....re in the nature of royalty for use of copyright. The assessee contends that the same is a business income and under no circumstances can be categorized as royalty payment. 9. We may notice that in case of SET India Private Limited, the Tribunal had addressed a similar question in its judgment dated 25th April, 2012 in Income Tax Appeal No.4372 of 2004. The Tribunal while confirming the decision of CIT (Appeals), in the said judgment held and observed as under: "6. Having heard both the sides, we observe that ld CIT (A) while examining the issue has stated that the Nonresident company has granted nonexclusive distribution rights of the channels to the assessee and has not given any right to use or exploit any copyright. The assessee is n....
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.... 10. In our opinion, the Tribunal has not committed any error. As noted, the assessee would receive a part of subscription charges paid by a large number of customers through different agencies. The said subscription charges would enable the customers to view channels operated by such assessee. The assessee was thus not parting with any of the copyrights for which payment can be considered as royalty payment. Term "copyright" has been defined in Section 14 of the copy right Act, 1957. A glance at the said provision would show that the copyright means exclusive right, subject to the provisions of this Act, to do or authorise the doing of any of the following acts specified in the said provision in respect of a work or any substantial part t....
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....or the purposes of making or earning any income from any source outside India; or (c) a person who is non-residnet, where the royalty is payable in respect of any right, property or information used or services utilised for the purposes of a business or profession carried on by such person in India or for the purposes of making or earning any income from any source in India:" Explanation 2 below subsection (1) of Section 9 describes the term "royalty" for the purpose of said clause, relevant portion of which reads as under: "Explanation 2.For the purposes of this clause, "royalty" means consideration (including any lump sum consideration but excluding any consideration which would be the income of the recipient chargeable under the he....